Gulab Thakur v. Fadali

1. The suit out of which this appeal arises was brought by one Fadali along with three other persons to obtain possession of a half share in property of which the last male owner was a distant relation named Janki. The principal defendant is Gulab, the appellant to this Court.

2. As to the descent of Fadali and Gulab from one common ancestor there is no doubt, and the following table shows how they are related to each other:

3. Janki's father was admittedly one Mardan who died on the 28th May, 1849. Janki himself died in June 1897 at the age of 75 years and was succeeded by his daughter, Kashi Bai, who died in April, 1916. The suit was filed on the 24th January, 1917. The second defendant, Maharani, was the widow of Janki's son, Girdhari, who predeceased Janki. Mardan was admittedly the natural son of Gangju who figures in the above tree as the defendant Gulab's great grandfather. The plaintiffs' case is that Mardan was adopted by Brijlal and, acccording to them Janki, was descended from Kalyan as shown in the following table:—

4. According to the defence, Mardan was not adopted by Brijlal and Brijlal was the son of Kharagram's brother, Manju.

5. From these particulars of the pleadings it will appear that if the plaintiffs genealogy is correct, Fadali and Gulab are related in the same degree to Janki, while if the defence is accepted Gulab is the sole heir being two degrees nearer than Fadali.

6. With the plaint were filed certified copies of two old documents. The first document (Exhibit P. 1) is a statement made by Mardan on the 4th December, 1828 supporting a claim made before the Revenue Authorities to hold 15 bighas of land in Mauza Pamakheri free of revenue. The other (Exhibit P. 2) is a pedigree of the zemindars of the same Mauza which was filed in the Court of the Extra Assistant Commissioner in charge of Settlement operations on the 7th May 1864. The defence contended that neither of these documents was admissible and that Mardan could not be validly adopted by Brijlal inasmuch as he was Brijlal's paternal uncle's son. There were other pleadings the nature of which will be sufficiently apparent from the principal issues, namely:—

“1. Whether Brijlal was the son of Kharagram?

2. (a) Whether Mardan was adopted by Brijlal?

(b) Whether all the members of the family acquiesced in this adoption?

3. Whether Mardan inherited the property of Brijlal and did not get any share in the property of Gangju?

4. Whether the adoption of Mardan by Brijlal is valid in law or by the principle of factum valet?

7. Whether plaintiff No. 1 is the next heir to Janki's property and has got a half share in it?

9. (a) Whether the point about Mardan's adoption by Brijlal was in dispute when Mardan made his statement as given in Exhibit P. 1 and when Janki produced the family tree as shown in Exhibit P. 2?

(b) Are these documents admissible in evidence?”

7. The Trial Judge held that Exhibits P. 1 and P. 2 were both admissible in evidence as statements made before any dispute regarding Mardan's adoption arose by persons having special knowledge of the family. On the strength of Exhibit P. 1 Kharagram, not Manju, was held to have been Brijlal's father. The adoption of Mardan by Brijlal was found to be proved and valid in law. The plaintiffs were accordingly given a decree for possession in respect of the property inherited by Kashi Bai from Janki, ordinary and occupancy holdings excepted. The defendants were ordered to bear the plaintiffs' costs in proportion to the relief granted.

8. The only respondents are the plaintiffs, and of them Bhawani Prasad alone put in an appearance.

9. In the first ground of appeal Exhibits P. 1 and P. 2 are said to be inadmissible in evidence and, if admissible, of no evidential value. I shall deal first with the question whether Exhibit P. 1 is admissible. The appellant urges that Mardan's own allegation showed him to have been only 4 years old when adopted and Brijlal to have died a year later. It is urged that Mardan cannot, therefore, be regarded as having possessed special means of knowledge regarding the adoption. It is also said that the adoption should be regarded as having been disputed in December, 1828, inasmuch as failing the adoption Mardan could have no title to the land which he claimed to hold free of revenue. Section 32(5) of the Indian Evidence Act renders admissible a statement by a person who is dead and runs as follows:—

“When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.”

10. I cannot think there is any force in the appellant's contention. Mardan may well have remembered at the age of 36 or 37 that he was adopted when 4 years old and lived for a year with his adoptive father. Moreover, even if Brijlal had died when Mardan was too young to remember him, the latter would surely be able to declare positively that he had been adopted from that acquaintance with the history of his family which he would necessarily possess. In Debi Pershad Chowdhry v. Radha Chowdrain (1905) 32 Cal. 84 , 31 I.A 160 , 9 C.W.N 161 , 8 Sar. 708 (P.C) their Lordships of the Privy Council referred to the well-known practice by which Hindu boys were taught the names of their ancestors, paternal and maternal, by their parents and other relatives while very young. These instructions are given not merely as a matter of curiosity, but as a matter of necessity. In accordance with this practice Mardan would necessarily have learnt the name of his adoptive father, if he was adopted, and I have no hesitation in holding that he possessed the special means of knowledge required by law.

11. With regard to the question whether the statement in Exhibit P. 1 was made before any dispute arose as to Mardan's adoption I can find no indication that the adoption itself was questioned. It appears from Exhibit 1 D. 7, the order rejecting Mardan's claim, that the rejection was based merely upon his inability to show that he had ever received a sanad of exemption. It was no part of his story that the land had ever been held revenue-free by Brijlal, nor was his story told in the course of any reply to an opponent as was the case in Navaini Kuar v. Chandi Din (1887) 9 All. 467 , 1887 A.W.N 118, an authority relied upon for the appellant. I, therefore, hold that there was no dispute in 1828 regarding Mardan's adoption by Brijlal and Exhibit P. 1 is admissible in evidence.

12. With regard to the evidential value of this document it is urged for the appellant that Mardan was interested in making out a close relationship between himself and Brijlal and, therefore, may have lied as to the real nature of the relationship. On the other hand, he must have realised that his allegation might be put to the test of inquiry and he did in fact mention two persons (Kammal and Umrao) as able to corroborate him with regard to the adoption. There is more force in the point that before the Settlement Officer in May 1863 Janki made a statement (Exhibit P. 4) in which he showed Mardan as the son of Gangju and referred to Brijlal as his paternal uncle. Janki's statement should be read in the light of Karanju's (Exhibit P. 3) made a year later in which the latter described half of Mauza Pamakheri as belonging to him with his brother Bisram and the other half to Janki. This statement is not intelligible except on the assumption that Janki had passed out of the family so that, to use his own expression, Gangju's share was not in his possession and Karanju had no share in his (Janki's) share. In the mutation proceedings which took place in June, 1849, immediately after Mardan's death we find Janki referred to as owning an entire one-third of the village: see Exhibit P. 6. A further indication that Mardan was adopted by Brijlal appears from Exhibit P. 7 which is a statement of garden lands in Mauza Pamakheri forming part of the Settlement Misl of 1864. In this Karanju is shown as occupying two gardens, both planted by his father Gangju. The third garden figures in the name of Janki and is described as planted by Brijlal, Janki's grandfather. In these circumstances I am not prepared to treat Exhibit P. 1 as without value.

13. In connection with Mardan's statement that he was adopted when only 4 or 5 years old it is urged for the appellant that Brijlal would not be likely to take in adoption so young a child. It appears, however, from passage 22, Section IV Dattaka—Mimansa, though the authenticity of the quotation therein given is doubtful, that 5 was once the maximum limit of age for the adoptee. According to the late learned Sastri Golapchandra it is desirable that a boy should be adopted at a tender age so that he may be thoroughly assimilated to the family into which he is adopted and being bred up from his infancy amidst its members may be looked upon as a natural relation: see “the Hindu Law of Adoption,” page 359 (second edition).

14. Turning to Exhibit P. 2 I find from the original settlement record of Mauza Pamakheri, which I obtained at the request of the parties, that this pedigree was prepared by the Extra Assistant Commissioner in charge of this Settlement in 1863–1864 from the statements made by the claimants whom he examined. He mentioned in his order of the 7th June, 1864 that all the signatories admitted the details' in the table to be correct. The signatories whose signatures are legible in the original are Ramdayal Daryo, Ramlalju and Nirpat. It appears that the three sets of claimants recognised as owners were treated as representing respectively the three sons of Kirparam, the first holder of the village. Those three sons were Bhimsen, Gopinath and Dalse. Janki was the sole representative of Bhimsen's line, Karanju and Bisaram's widow admitting that they had no claim. The representative of Dalsa's line was Rai Singh, while Ramdayal took as descendant of Gopinath. The pedigree shows Mardan as adopted by Brijlal and it is clear from the orders of the Extra Assistant Commissioner, which I have perused in original, that no dispute as to the adoption was raised. There can be no doubt that Janki described his father Mardan as having been adopted by Brijlal and the reference in his statement of the 11th May, 1863, (Exhibit P-4) to Gangju as his grandfather must, therefore, be read as in no way inconsistent with such a claim. The pedigree thus undoubtedly represents the views of the descendants of Kirparam at a time when the real position of Mardan in the family might well have been known to many. I have no doubt that it is admissible in evidence under Section 32(5) of the Indian Evidence Act, and deserves to have great weight attached to it. These considerations suffice for the disposal of all the first three grounds of appeal.

15. In the fourth ground of appeal it is said that Exhibit P-7, to which reference has already been made, is inadmissible and should not have been relied upon. In argument, however, the appellant's learned Counsel admitted the admissibility of this document and asked the Court to compare the copy filed with the original in the Settlement Record. I have made this comparison and find the copy to be perfectly correct. The word used for grand, son is “Nathi,” and Brijlal who was only one degree nearer their ancestor Kalyan could not possibly be described as Janki's grandfather.

16. The fifth ground of appeal complains that Janki is incorrectly referred to in the 12th paragraph of the lower Court's judgment as having inherited Brijlal's share. It is urged that in Exhibit P-4 Janki did not in fact describe himself as having inherited any share from Brijlal. What Janki actually said was that he was in possession of Brijlal's share. It appears from the Settlement Extra Assistant Commissioner's order of the 7th June, 1864, that Janki was the sole descendant of Kirparam's son, Bhimsen, who put in a serious claim to the share which would ordinarily go to that line. Karanju appeared before the Settlement Officer as is shown by Exhibit P-3 and explained that as he had long been out of possession, having failed many years back to pay the land revenue, he could not set up any title to a share. There is nothing in all this one way or the other to assist us in deciding whether Mardan had been adopted by Brijlal or not. The history of the village as given in the Settlement Extra Assistant Commissioner's Order of the 12th May, 1863, (Exhibit P-5) shows that Brijlal was one of the holders for some years from 1796 A.D This order refers more than once to the genealogical table (Exhibit P-2) which the Extra Assistant Commissioner himself prepared, as already stated, and the history of the village becomes perfectly intelligible if it be held that Mardan took Brijlal's place as he would do, if adopted, and was in turn succeeded by his natural son Janki.

17. The sixth ground of appeal relates to Exhibit I D-5 which is a copy of the statement made by one Nandkishor before the Assistant Commissioner, Saugor, on the 6th September, 1861, at an early stage of the inquiry made at the Settlement with the object of determining who should be recognised as proprietors of Mauza Pamakheri. This Nandkishor was acting in the matter as agent of the plaintiff Fadali's father, Loke, and described Janki as son of Loke's uncle. The lower Court, relying on Sangram Singh v. Rajan Bahi (1886) 12 Cal. 219 , 12 I.A 183 , 4 Sar. 676 (P.C), held Nandkishor's statement to be inadmissible in evidence, inasmuch as he was merely an agent and not proved to have special means of knowledge of the relationship in question. It is urged that the plaintiff Fadali should be regarded as having derived his interest from his father Loke and that the statement made by Loke's agent amounts to an admission under Section 18 of the Indian Evidence Act and is, therefore, relevant. Such statements, however, must have been made during the continuance of the interest of the person making the statements and it appears from the Settlement Extra Assistant Commissioner's order that Loke's father Udet who died in 1847 when Loke was a minor, had already lost all rights in the village. Further, Section 18 of the Indian Evidence Act, does not by itself make the admissions therein mentioned relevant. One reversioner should not be regarded as deriving his interest from another in whom no interest ever vested, even though that other was his own father: see Bhagwanta v. Sukhi (1900) 22 All. 33 , 1899 A.W.N 159 (F.B) and Govinda Pillai v. Thayammal (1905) 28 Mad. 57 , 14 M.L.J 209. Consequently, the primary rule in Section 21 that an admission is relevant and may be proved as against the person who makes it or his representative-in-interest is not applicable here. Nandkishor's statement is certainly not relevant under Section 32(5) of the Indian Evidence Act, inasmuch as he is not shown to have had any special means of knowledge regarding the family of his client. This point is exactly covered by the Privy Council decision relied on by the lower Court. Even if it be conceded that the statement is relevant, I consider that it does not amount to a clear denial of Mardan's adoption by Brijlal. In the first place, it was made nearly three years before the Settlement Extra Assistant Commissioner who prepared the genealogical table (Exhibit P-2) after examining all the claimants to the village. Secondly, in the loose parlance common among Hindus, Brijlal, no less than Mardan might have been referred to as the uncle of Loke's father Udet.

18. The seventh ground of appeal relates to Janki's description of Karanju's son Ganu as his “chachazad bahi” (paternal uncle's son) in Exhibit D-1, the deed of gift, executed by Janki in Ganu's favour on the 3rd July, 1891. It is urged that if Mardan had really been adopted by Brijlal, no special affection such as must have prompted the gift effected by Exhibit D-1 could have existed between Janki and Ganu and that Ganu could only be described as son of Janki's paternal uncle if Janki regarded his father Mardan as the full brother of Karanju. These contentions seem to me to lose much of their force when regarded in the light of the history of the village as given by the Settlement Extra Assistant Commissioner in Exhibit 1 D-2. Brijlal and Karanju occupied corresponding places in the table of descent from Kalyan and both in accordance with usage might have been referred to as Janki's uncle. As for the motive for the gift it appears from the Settlement Extra Assistant Commissioner's proceeding and Karanju's own statement in 1864 (Exhibit P-3) that Karanju was for some time a recognised Pattidar but lost his share because he was unable to pay the Government revenue. Janki's share in 1864 was declared to be 6 annas 4½ pies or more than an exact one-third of the village by just about the share conveyed by Exhibit D-1. It appears from the plaintiff Fadali's statement as P.W No. 10 that Gari Bahu by whose name Exhibit D-1 describes the share given to Ganu was the widow of Janki's son Mahadeo. To infer from this gift that the statements made to the Settlement Extra Assistant Commissioner in 1864 by the then co-sharers regarding the adoption were incorrect would, in my opinion, be wholly unreasonable. I agree then with the lower Court that Exhibit D-1 does not weaken the plaintiffs' case.

19. The 8th ground of appeal is concerned with the evidence of the first four witnesses examined by the appellant. Gaya Prasad (D.W No. 1) is the appellant's Purohit and tenant and there seems to be considerable force in the lower Court's remark that this man is not likely to remember the names of the ancestors recited by Janki who died 20 years before the witness was examined. Bhagole, the second witness, heard Janki recite the names of his ancestors at a wedding which took place in 1868 when the witness was only 15 years old: the appellant and he had given evidence for each other on a previous occasion. Pyarelal (D.W No. 3) likewise speaks of a single recital at a wedding which took place about the year 1878 when he was 22 years old. His sister's daughter is married to the appellant and he had given evidence for him. Ante (D.W No. 4) is 80 years old and still hardly old enough to remember Mardan who died in 1849. It is true that all these four men reside in Pamakheri and so had opportunity of knowledge which outsiders could not obtain. On the other hand, their evidence carries little weight when compared with the statements made more than 50 years earlier by claimants to the village at a time when none had any particular interest in alleging an adoption which had really taken place.

20. The 9th ground of appeal relates to evidence given not by the defendants' witnesses but by the plaintiff Fadali as his own 10th witness and Bareial (P.W No. 11). If Mardan, who, like Brijlal, was by birth third in descent from the common ancestor, Kalyan, was adopted by Brijlal, then Janki stood in the same degree as the plaintiff, Fadali. On the other hand, if Mardan remained throughout his life the son of Gangju, then Janki would be one degree nearer than Fadali to the common ancestor and so his senior. Now, Fadali admittedly shaved his moustache when Janki died and it was elicited from him in cross-examination that this mark of jrespect is only shown to seniors. Similarly, Bareial (P.W No. 11) said in cross-examination:—

“Ganu Thakur had shaved his moustaches at the death of Janki. Amongst us the younger relations only shave their moustaches. I mean those who are younger in degree and if of the same degree those who are younger in age shave their moustaches.”

21. Fadali is only 40 years old and so must have been considerably younger than Janki when the latter died and according to Barelal would properly shave at Janki's death. We have no indication of Ganu's age, and if Mardan was not adopted Ganu and Janki would as cousins stand in the same degree of descent from the common ancestor: in these circumstances I am not prepared to attach any special significance to Ganu's shaving which, as the lower Court has remarked, may have been due to respect for Janki. It must be remembered in this connection that Janki was the most influential member of Bhimsen's branch and had given Ganu a part of his share in the village.

22. In connection with the 10th ground of appeal stress is laid on the supposed improbability that Brijlal would adopt a cousin standing in the same degree as himself from the common ancestor. Reference is made for the appellant to Placita 29 and 30 in Section II of the Dattaka Mimansa which are thus translated in “Stokes' Hindu Law Books” at page 552. (Edition of 1865):—

Placitum No. 29:—

“By the position that a brother's son only must be affiliated, it is meant, that the son of a whole brother only must be affiliated. Manu declares this; if one, among brothers of the whole blood (Ekajata), be possessed of male issue (Putrayan) Manu pronounces that they all are fathers of the same, by means of that son.”

23. Placitum No. 30:—

“In this text, the state of brothers, as adoptive fathers, being propounded, their incapacity to be the objects of adoption follows.”

24. In the placitum next following Nanda Pandita infers from the text of Manu that a man cannot adopt his paternal uncle of the whole blood, or his full brother, or his full sister's son. I am also referred to Sriramulu v. Ramayya (1881) 3 Mad. 15, in which it was explained by that learned Hindu lawyer Muttusami Ayyart J., that the prohibition of the adoption of a half brother has nothing to do with the possibility of a legal marriage between the son and his step-mother in her virgin state. There is nothing in the present case to indicate that Brijlal could not have married the woman who married Gangju and became the mother of Mardan. That Mardan was much younger than Brijlal appears from Mardan's statement in 1828 (Exhibit P. 1). So far as his age then is concerned there is nothing incongruous in the adoption. It is also clear that the express prohibitions laid down by Nanda Pandita in Placitum 107, Section II, Dattaka Mimansa, do not, include the paternal great grandfather's great grandson. On the other hand, there is direct authority in Yamnava Govind Appaji v. Laxuman Bhimrao (1912) 36 Bom. 533 , 16 I.C 180 , 14 Bom. L.R 543, in favour of adopting the son of the mother's brother and Nanda Pandita was there held to have intended that anybody could be adopted, so long as he was not within the cases specified as prohibited. In Walbai v. Heerbai (1910) 34 Bom. 491 , 4 I.C 277 , 11 Bom. L.R 1172, the adoption of a father's brother's son was treated as clearly valid. I may also refer to Ramkrishna Gopal v. Chinmaji Vyankatesh (1913) 15 Bom. L.R 824 , 21 I.C 34, in which two Judges of the Bombay High Court, following Yamnava Govind Appaji v. Laxuman Bhimrao Kulkarni (1912) 36 Bom. 533 , 16 I.C 180 , 14 Bom. L.R 543, (above cited), upheld the adoption of a father's sister's son. In Virayya v. Hanumanta (1891) 14 Mad. 459, one of the, cases relied upon by the lower Court, the adoption of a paternal uncle's son was upheld.

25. The law being in favour of Mardan's adoption and his age having been suitable, I am unable to see that there was any improbability in the case set up for the plaintiffs.

26. In the 11th ground of appeal objection is taken to the lower Court's conclusion from the behaviour of Gangju as described in Exhibit PI that Mardan's adoption was acquiesced in by the members of the family. It is urged that acquiescence which can properly be treated as evidence of an adoption should be shown to have extended over a number of years. This argument is sufficiently met by the circumstances already set out in which the pedigree of the family was prepared at the Settlement of 1864. The alleged adoption had taken place between 60 and 70 years back and it was admitted by the members of the family who set up claims to be recognised as proprietors of the village. It is not to the point that Mardan's claim to hold 15 bighas of land free of revenue was rejected.

27. My conclusion then is that the adoption of Mardan by Brijlal is satisfactorily established.

28. It is unnecessary to consider the documents which the plaintiff-respondent, Bhawani Prasad, moved this Court to admit and consider although they had been rejected by the lower Court as filed too late. I may, however, say that the respondent's affidavit shows that he knew of the existence of the originals before he brought to the notice of the lower Court the fact that they supported his case and that he wished to file copies.

29. It remains to deal with the allegation in the last ground of appeal that the schedule of costs as drawn up by the lower Court is not correct. The plaintiffs' claim included a half share in an ordinary holding and an occupancy holding and a half share in a large house. The claim to the share in the ordinary and occupancy holdings has been disallowed. The house is number 4 of the 5 in which a share was claimed and the appellant who was said to be in possession pleaded that the person actually in possession was Bala Prasad who was thereupon joined as the fourth defendant. One Bala Prasad's defence the fifth issue was framed on which the lower Court found that a portion only of that house belonged to Janki, the name of this portion being “Bhula.” Accordingly, the plaintiffs were given a decree against Bala Prasad for possession of one-half of “Bhula.” The value of the entire house was found on a preliminary issue to be Rs. 2,000, but the value of the portion called “Bhula” has not been separately ascertained.

30. The plaintiffs have been allowed all their costs except a sum of Rs. 20 for Court-fees and Rs. 10-3-0 for Pleader's fee and it is impossible to understand how these figures have been reached.

31. It is clear that the decree does not correctly give effect to the order in the judgment that the defendants are to bear the plaintiffs' costs in proportion to the relief granted to the plaintiffs. The decree must be modified so as to disallow as much of the Court-fee and Pleader's fee scheduled for the plaintiffs as corresponds to the value of a half share in the ordinary and occupancy holdings and a half share in that part of the fourth house which is called “Bhula.” What these values are will be ascertained by the lower Court which will then amend its decree accordingly. The appeal is dismissed. The appellant having failed on the principal question and succeeded only on the trivial matter of costs he will pay the costs in this Court of the plaintiff-respondent, Bhawani Prasad.

32. Appeal dismissed.